[1] Requirements to constitute unfair trade practices caused by false or exaggerated advertisements under Article 23 (1) 6 of the former Monopoly Regulation and Fair Trade Act, and information that the business operator should include in the advertisement

[2] The case holding that the contents of advertisement cannot be viewed as false or exaggerated, on the ground that it cannot be viewed as falling under "important matters that may affect consumers' decision to purchase" where a housing installment company does not include the fact that interest rate may vary exceptionally in a certain case according to the terms and conditions of credit transaction in advertising a housing installment financing product in the form of a guide leaflet

[1] In full view of each provision of Article 23(1)6 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 9 subparag. 1 and Article 23(1)6 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 36(1) [Attachment] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 15328 of Mar. 31, 1997) and Article 36(1) [Attachment] of the former Act or Article 23(1)6 of the former Act (amended by Act No. 5235 of Dec. 30, 1996), in order to constitute unfair trade practices by falsehood or advertisement, advertising of goods or service should be likely to affect consumers, and it should be likely that the contents of such advertisement will affect consumers.

[2] The case holding that the contents of advertisement cannot be viewed as false or exaggerated, on the ground that it cannot be viewed as falling under "important matters that may affect consumers' decision to purchase" where a housing installment company does not include the fact that interest rate may vary exceptionally in a certain case according to the terms and conditions of credit transaction in advertising a housing installment financing product in the form of a guide leaflet

[1] Article 23(1)6 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 23(1)6 and (2) of the Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 36(1) [Attachment Table] subparagraph 9(a) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 15328 of Mar. 31, 1997), Article 9 subparag. 1 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 1995-6 of Dec. 30, 199) / [2] Article 23(1)6 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 36(1) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 936 subparag. 136(1) of the Fair Trade Act)

Foreign Credit Card Co., Ltd. and five others (Law Firm Rate, Attorneys Yoon Sejong-ri et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 99Nu396 delivered on April 19, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

In full view of each provision of Article 23(1)6 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 9 subparag. 1 of the Fair Trade Type and Criteria for Unfair Trade (Notice No. 1995-6 of the Fair Trade Commission), Article 23(1)6 and 23(2) of the former Enforcement Decree (amended by Presidential Decree No. 15328 of Mar. 31, 1997), Article 36(1) [Attachment] of the former Act or Article 23(1)6 of the former Act to constitute unfair trade practices through false or exaggerated advertisements, there should be concerns that such advertisements should be false or exaggerated advertisements, and that there should be concerns that such advertisements may undermine consumers.

On the other hand, in advertising, business operators do not have the obligation to advertise all matters concerning goods or services included in the contents of the advertisement, and provide adequate information on important matters that may affect consumers' decision to purchase.

In this case, according to the records, the housing installment financing products of this case do not automatically change interest rates that are linked to the standard interest rates such as preferential interest rates, such as pure floating interest rate financial products, but can be seen as products that can exceptionally change interest rates only when the plaintiffs exercise their right to change interest rates by meeting the requirements for changing interest rates under the so-called principle of change in circumstances, such as "the change in financial circumstances" under Article 3 of the Terms and Conditions for Credit Transactions or other considerable reasons. As such, the fact that interest rates may be changed exceptionally in certain cases according to the above terms and conditions can be changed exceptionally. In light of the fact that consumers can have specified the above terms and conditions in accordance with Article 3, etc. of the Regulation of Terms and Conditions Act when entering into an individual installment financing transaction agreement with the plaintiffs, it cannot be deemed as falling under "important matters that may have an impact on the consumer's decision to purchase" which should be provided in the advertisement of this case, the advertisement of this case, which is the form of guiding the contents of this case, cannot be said to be false or exaggerated.

Although the reasoning of the court below is different, the conclusion that the advertisement of this case does not constitute a false or exaggerated advertisement is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

In addition, since the advertisements of this case are not false or exaggerated advertisements, so long as the plaintiffs' act did not meet one of the requirements to constitute unfair trade practices under Article 23 (1) 6 of the former Act or Article 23 (1) of the former Act, and the judgment of the court below that revoked the defendant's corrective order of this case is legitimate, the grounds of appeal that caused the violation of the judgment of the court below as to the remaining requirements are without merit.

Meanwhile, according to the relevant laws and regulations, the elements of a false or exaggerated advertisement and a deceptive advertisement are different from each other, and in this case, the defendant's act can be deemed as an unfair trade practices through deceptive advertisements until the time when the court below's argument was concluded, which did not add the grounds for disposition, the court below failed to determine whether the plaintiffs' act constitutes unfair trade practices by deceptive advertisements, and thus, it cannot be deemed as a deviation of determination.

All of the grounds of appeal cannot be accepted.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)